Many readers will have seen headlines in the press claiming that obesity is now classed as a disability following a ruling by the European Court of Justice.

The case is that of Mr Kaltoft, a clinically obese child minder working for a local council in Denmark. He was dismissed due to redundancy and claimed that his obesity had been a factor in the decision to dismiss him. He was 5 feet 7 inches tall and weighed over 25 stone, which is extreme or morbid obesity under the World Health Organisation classification.

The ECJ was asked to rule on four questions. The first question dealt with whether it was unlawful to discriminate on the grounds of obesity. The ECJ ruled that obesity in itself cannot be regarded as a ground for protection against discrimination. This made questions two and three irrelevant.
The fourth question dealt with whether obesity could ever be deemed to be a disability under European law (which has been adopted in to our own legislation).

Here the ECJ ruled that in certain circumstances obesity could be deemed to be a disability where the obesity has an impact on other aspects of the person’s life – for example, does it create an impairment on the obese person’s physical, mental or psychological wellbeing or does it hinder their full and effective participation in professional life.

This means that obesity itself is not a disability, but it could lead to factors such as joint problems or an inability to walk more than short distances, which could be considered to be a disability.

Commentators have urged a need for employers to be careful that they don’t suggest that an overweight employee has only themselves to blame as this ruling places obesity in the same position as other forms of risk taking such as skiing or horse riding. An employer must make adjustments for someone who cannot participate in their work life because of their weight in the same way that they must make adjustments for someone who cannot participate because of a skiing or horse riding accident.

This does leave employers in a difficult position in determining whether an employee’s size is so large as to cause them a hindrance and, if this may be the case, how to approach the subject with the employee. One option would be to circulate a notice to all employees to advise them to speak with HR (on a confidential basis) if they feel that they have any medical condition or other impairment that is hindering them at work and for which they may need adjustments to assist them.

It could definitely be a tricky area. If you have any queries please do contact me on 01484 821309 or at katebooth@eatonsmith.co.uk
Posted Wednesday 31st of December 2014